Originally from Soft Law in International Arbitration, Second Edition

PREVIEW PAGE

There is no automatic duty to disclose documents, or right to request or obtain document production, in international arbitration, and the advent of electronic documents should not lead to any expansion of the traditional and prevailing approach to document production. Thus, requests for the production of electronic documents, like requests for the production of paper documents—to the extent they are deemed necessary and appropriate in any given arbitration—should remain limited, tailored to the specific circumstances of the case and subject to the general document production principles of specificity, relevance, materiality and proportionality. Without endorsing any particular practice or scope of document production, this Report and the accompanying Appendices identify several techniques that arbitrators and parties may wish to consider using in order to manage, in a fair and efficient manner, any issues that may arise when production of electronic documents is permitted or required and, importantly, to ensure that international arbitration does not fall prey to the inefficiencies of electronic document production that have plagued litigation in certain national court jurisdictions like the United States.

1. INTRODUCTION

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1.2 A characteristic of international business disputes is the importance of documentary evidence. With the advent of the electronic age, communications and other information that used to be recorded in paper documents are now often created and stored in electronic form (“electronic documents”). Accordingly, much of the documentary evidence now produced in business disputes consists of electronic documents. The move from paper to electronic documentation has been accompanied by an exponential increase in the volume of material that is recorded in a permanent fashion.

1.3 Documentary evidence may be introduced into dispute resolution proceedings in broadly two ways. First, a party will typically submit documentary evidence in support of its own case. Secondly, depending on the procedural framework under which the dispute is being resolved, a party may also be able to obtain the production of such evidence in the possession or control of its opponent. The scope and efficiency of any document production process can affect the efficiency of the entire proceedings.

 1.4 The extent to which a party to court litigation may obtain documents in the possession or control of its opponent differs considerably between jurisdictions. In some jurisdictions in which there is a general right to disclosure or discovery of documentary evidence in the hands of an opponent, the advent of electronic documents, and the increase in the volume of material, have given rise to challenges to the efficiency of the litigation process. This has been well documented in the United States, where document discovery is particularly wide-ranging. Other common law jurisdictions which provide for the disclosure of documents as a standard feature of litigation have also had to consider how to adapt those processes to the advent of electronic documents, and have sought to avoid the problems experienced in the United States. Conversely, most civil law jurisdictions do not consider extensive production of documents by the opponent to be a necessary or even appropriate tool to further procedural